Prof. Bagenstos Discusses Pregnancy Discrimination Case Young v. United Parcel Service at Michigan Law

By Lori AthertonMarch 16, 2015

Before the Pregnancy Discrimination Act (PDA) was passed in 1978, pregnancy discrimination in the workforce had been overt and was blatantly expressed by employers, many of whom had policies in place that forced women to quit their jobs when they became pregnant, regardless of their ability to work, said Professor Sam Bagenstos.

"Pregnancy was the moment where we enforced in the labor system the idea that women basically had to make a choice between working and parenthood, and motherhood was the preferred choice," Bagenstos, the Frank G. Millard Professor of Law, told a Michigan Law audience that gathered March 16 to learn about the pregnancy discrimination case Young v. United Parcel Service(UPS). "The fulcrum of sex discrimination in the workforce in the United States was pregnancy discrimination for a very long time."

An expert in civil rights and employment discrimination law, and the former number-two official in the Department of Justice's Civil Rights Division, Bagenstos has personal experience with Young, having argued the case before the U.S. Supreme Court on Dec. 3, 2014, on behalf of plaintiff Peggy Young.

Young, according to Bagenstos, had worked the early-morning shift as a delivery driver for UPS. While most of the packages she handled weren't of significant weight, Young's job description stated that she needed to be able to lift 70-pound packages. When Young, who had previously experienced a miscarriage, got pregnant in 2006, her doctor advised her not to lift more than 20 pounds. She provided a doctor's note outlining the restriction to UPS, and asked to be temporarily reassigned to light duty. UPS said that because Young's job description required that she be able to lift 70 pounds, and because she could only temporarily lift 20 pounds, the company could not accommodate her request and forced her to take an unpaid leave, which resulted in her losing her health benefits and eventually bringing a lawsuit against UPS.

"This is what pregnancy discrimination looks like in America right now," Bagenstos said of the case. While forcing pregnant women to leave their jobs "happens a lot less now, what does happen is that employers refuse to give pregnant workers the same kind of accommodations they give to people with other kinds of conditions."

Those accommodations, Bagenstos noted, are clearly articulated in the two clauses of the PDA, which was enacted by the U.S. Congress in response to General Electric Company v. Gilbert, the 1976 case in which the U.S. Supreme Court ruled that pregnancy discrimination was not the same as sex discrimination, but was instead discrimination between pregnant and non-pregnant persons.

"The first clause [of the PDA] says pregnancy discrimination is sex discrimination, and the second clause says that if you are pregnant or affected by pregnancy, you have to be treated the same as anyone else who is similar in the ability or inability to work," Bagenstos said. "While the explicit pregnancy discriminatory rules pretty much fell away once the PDA was passed, what continues is the kind of pregnancy discrimination that you see in the Young case."

When Bagenstos was brought on to represent Young, she and her lawyer had already lost several appeals, the last one being in the Court of Appeals, Fourth Circuit in 2013. In the certiorari that Bagenstos filed, he argued that the "lower courts have been consistently misreading the [PDA] statute in several ways," which he outlined for the Michigan Law audience.

"Remember the second clause of the PDA," Bagenstos said. "That language gives the proper basis for comparison. You are supposed to compare pregnant workers and the accommodations they receive with the accommodations of other workers who are similar in their ability to work. You're not supposed to look at why they get accommodations or the source of their disabling condition; you're supposed to look at whether or not they are getting the accommodations that other people with similarly affecting conditions are getting. Here, Young isn't getting that."

Referencing the Gilbert case, in which the Supreme Court also ruled that employers could legally exclude conditions related to pregnancy from employee sickness and accident benefits plans, Bagenstos said "the second point we made is that if the lower courts are right, then Gilbert, which Congress tried to overturn in the PDA, is being reinstated. Why is it being reinstated? The argument in Gilbert was that we're not screening out pregnant workers. If you are pregnant and injured off the job, then you get disability insurance. That's the identical argument that the lower courts were making in Young. If you are pregnant and injured on the job, then you get an accommodation, so we're not screening out pregnant workers, UPS said. Our argument was that it can't be right—otherwise Gilbert would not have been overturned if that argument can be accepted."

Bagenstos, who took the Young case because he "saw it as a plausible case to win in the Supreme Court," said he doesn't know when the Court will issue its ruling on Young v. United Parcel Service, but expects a decision to be announced at any time.